TMI Blog2022 (9) TMI 798X X X X Extracts X X X X X X X X Extracts X X X X ..... ce is the period of dispute, which is prior to the decision cited above - since the issue is already settled in the above decision of appellant itself, the impugned order is set aside. Appeal allowed - decided in favor of appellant. - SERVICE TAX APPEAL NO. 180 OF 2008 - A/10993/2022 - Dated:- 4-8-2022 - HON'BLE MEMBER (JUDICIAL), MR. RAMESH NAIR AND HON BLE MEMBER (TECHNICAL), MR. (RAJU) Shri Vinay Kansara, Advocate for the Appellant Shri. Dharmendra Kanjani, Superintendent (Authorized Representative) for the Respondent ORDER RAMESH NAIR The brief facts of the case are that the appellants are engaged in providing the service of Commercial Construction Services. In some contracts they paid Service Tax on the 100% of gross value without availing the abetment in terms of Notification No. 1/2006-ST dated 01.03.2006 and availed the Cenvat credit. In some of the contracts they paid Service Tax on 33% of the gross value after abetment of 67% in terms of Notification No. 1/2006 ST and only in respect of this service contract they not availed the Cenvat credit. The case of the Department is that since the appellant in respect of some contracts ava ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... xcess of the service tax calculated on a value which is equivalent to a percentage specified in the corresponding entry in column (5) of the said Table, of the gross amount charged by such service provider for providing the said taxable service, subject to the relevant conditions specified in the corresponding entry in column (4) of the Table aforesaid : No. Sub-clause of clause (105) of Section 65 Description of taxable service Conditions Percentage 1 2 3 4 5 7. (zzq) Commercial or industrial construction service. This exemption shall not apply in such cases where the taxable services provided are only completion and finishing services in relation to building or civil structure, referred to in sub-clause (c) of clause (25b) of section 65 of the Finance Act. Explanation. - The gross amount charged shall include the value of goods and materials supplied or provided or used by the provider of the construction service for uch ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is in excess of the service tax calculated on a value which is equivalent to thirty-three per cent of the gross amount charged from any person by such commercial concern for providing the said taxable service : Provided that this exemption shall not apply in such cases where (i) the credit of duty paid on inputs or capital goods has been taken under the provisions of the Cenvat Credit Rules, 2004; or (ii) the commercial concern has availed the benefit under the notification of the Government of India, in the Ministry of Finance (Department of Revenue) No. 12/2003-Service Tax, dated the 20th June, 2003 G.S.R. 503(E), dated the 20th June, 2003]. Notification No. 1/2006-S.T., dated l-3-2006 In exercise of the powers conferred by sub-section (1) of Section 93 of the Finance Act, 1994 (32 of 1994) (hereinafter referred to as the Finance Act), the Central Government, on being satisfied that it is necessary in the public interest so to do, hereby exempts the taxable service of the description specified in column (3) of the Table below and specified in the relevant sub-clauses of clause (105) of Section 65 of the Finance Act, specified in the correspondin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e abatement under the aforesaid Notifications would not be available. In a case where the CENVAT credit on input/input service is not taken then the benefit of abatement would be available. The Notification uses the expression in cases where . In other words, the Notification does not stipulate that in all cases, the condition of non-availment of CENVAT credit should be satisfied uniformly without exception. Therefore, in respect of a contract where the assessee has not taken input credit prior to 1-3-2006 and input/input service tax credit on or after 1-3-2006, the assessee would be rightly entitled for the benefit under the Notification No. 15/2004-S.T. as replaced by Notification No. 1/2006, dated 1-3-2006. In a case where the assessee avails credit, then in such cases the assessee is not entitled for abatement and the service tax liability will have to be discharged on the full value of the contract. There is nothing in these Notifications which prevents an assessee from not availing CENVAT credit and paying service tax on 100% of the contract value in respect of one particular contract and availing abatement and not availing CENVAT credit in respect of another contract. In ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... on afresh and re-computation of the differential service tax demand, if any, in the light of the decision given above. 5. Thus the appeals are allowed by way of remand. 6. In another case of Afcons Infrastructure Ltd (Supra) this Tribunal considered the identical issue wherein the following order was passed: 4. I have gone through the rival submissions. I find that the issue is squarely covered by the decision of Bharat Heavy Electricals Ltd. (Supra), wherein the Tribunal has observed as follows:- 4.2 plain reading of the notifications clearly shows that the condition relating to non-availment of CENVAT credit on inputs/input services applies to case where CENVAT credit is taken either on the input‟ or input service‟, then the abatement under the aforesaid notifications would not be available. In a case where the CENVAT credit on input/input service is not taken then the benefit of abatement sould be available. The notification uses the expression in cases where . In other words, the notification does not stipulate that in all cases, the condition of non-availment of CENVAT credit should be satisfied uniformly without exception. Therefore, in r ..... X X X X Extracts X X X X X X X X Extracts X X X X
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